Press release from The Iona Institute

Comments confirm that it will become very difficult for a preference to be given to motherhood and fatherhood in certain laws should referendum pass

The Iona Institute has today welcomed comments made in various media by Judge Kevin Cross, head of the Referendum Commission, about surrogacy, adoption and Assisted Human Reproduction (AHR).

Last week The Iona Institute issued a legal opinion on how the proposed new Article 41 of the Constitution, if passed, would affect the ability of a future Oireachtas to give preference to a married opposite sex couple compared with a married same-sex couple in laws pertaining to surrogacy, adoption and AHR.

The lead author of the legal opinion is Michael Collins, SC.

Both the legal opinion commissioned by the Iona Institute and Judge Cross’s responses outlined below demonstrate that if we pass the referendum it will become very difficult for our laws to give a general preference to motherhood and fatherhood.

The press statement accompanying the release of the legal opinion said:

“If we pass the marriage referendum as the Government wants it will have profound changes on how we view the family in our law. A major legal opinion commissioned by The Iona Institute examines this question. It shows that any ability to lawfully distinguish between same sex and opposite sex couples for purposes such as adoption etc. will be severely and probably wholly undermined.”

Judge Cross was asked the following yesterday by RTE’s Prime Time:

If the Marriage Referendum is passed, will it be constitutionally permissible to favour opposite sex married couples over same sex married couples in any laws, regulations, or policy of a statutory agency, governing surrogacy and assisted human reproduction?

Judge Cross responded:

“If legislation was passed which treated same sex married couples and opposite sex married couples differently, and if that legislation was challenged, the Courts would have to decide whether the Constitution permitted such different treatment. The following are relevant considerations:

• If the Marriage Referendum is passed, the Constitution will provide for a single institution of marriage available to couples of the same sex and couples of the opposite sex.
  • As well as considering Article 41 as amended in this referendum, the Courts would also have to consider Article 40.1, which provides that all citizens shall, as human persons, be held equal before the law.
  • As the referendum envisages only one constitutional status of marriage, any law which treated one type of married couple differently from another would be likely to be very carefully scrutinised by the Courts and the circumstances in which such different treatment could ever be permitted would likely be exceptional.
  • Were such different treatment possible, and such laws introduced, they would be upheld only if they did not create invidious or arbitrary discrimination between opposite sex and same sex couples. This means – in practical terms – that the reason for the different treatment would have to be a very good reason, which served a legitimate legislative purpose. The difference in treatment would also have to be relevant to its purpose and both opposite sex and same sex couples would have to be treated fairly. Whether these requirements are satisfied in any given circumstance would depend on the evidence presented.”

The Judge made similar remarks concerning adoption.

He also spoke to The Irish Times.

He was pressed in the following way:

To clarify: in regulating surrogacy, it would be open to the legislature to privilege an opposite-sex couple over a same-sex couple?

He responded:

“I didn’t say that. If any such differentiation were introduced and the courts were to scrutinise any such differentiation, in order to be upheld there would have to be very good, fact-based reason, relevant to the purpose of the legislation, and everybody would have to be treated fairly and proportionately. It would be a very hard scrutiny. Not impossible, but difficult to imagine.”

Commenting on the above remarks, The Iona Institute said in response: “We very much welcome the latest remarks from Judge Kevin Cross. They bear out the analysis of these issues as outlined in our legal opinion.

“As he says: ‘any law [concerning surrogacy or AHR] which treated one type of married couple differently from another would be likely to be very carefully scrutinised by the Courts (our italics) and the circumstances in which such different treatment could ever be permitted would likely be exceptional (our italics).’

“We summarised the finding of our own legal opinion as follows: ‘The legal opinion is of the view that the answer in each case would probably be ‘No’. That is, if either adoption law or laws around surrogacy and assisted human reproduction (AHR) were to give preference to married men and women as distinct from two married parents of the same sex on the grounds, for example, that children being placed for adoption or conceived via AHR and/or surrogacy ought to have a married mother and a father where practicable, such laws would likely be struck down as unconstitutional save in very exceptional circumstances.’”

The Iona Institute concluded: “What is at stake in this referendum needs to be made completely clear to the Irish people before they cast their votes on this day week. Do the Irish people really want our laws to make it far more difficult to give preference to motherhood and fatherhood in the lives of children?”